Public Law

The Scottish Government has issued statutory guidance on the new streamlined eviction process in certain cases where a tenant (or any one of a joint tenant), a person living in, or lodging in the house, a subtenant or a person visiting the house has been convicted of an offence punishable by imprisonment within the previous 12 months.

Who can use it?

Social landlords can use the process where: (i) serious antisocial or criminal behaviour has already been proven in court; (ii) the behaviour which led to the conviction was in, or in the locality of the tenant’s house; and (iii) the landlord considers that eviction action is appropriate, such as to protect neighbours from harm.

Benefits?

The process removes the court’s discretion to consider whether it is reasonable to grant an eviction order. The court must grant an eviction order where it is satisfied that: (i) there is a ground for recovery of possession set out in paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001; and (ii) the notice of proceedings was properly served.

Where the court is not satisfied that the criteria for streamlined eviction is satisfied, it will consider any other grounds for recovery of possession raised in the statement of claim.

Human rights

If tenants challenge the proportionality of a streamlined eviction action on human rights grounds (Article 8 of the ECHR ‘right to respect for private and family life’), landlords may need to give evidence on the reasons for the action if the sheriff decides that the challenge has sufficient basis to be considered.

Steps to be taken before streamlining eviction

Landlords should seek legal advice to identify whether there are grounds for raising a streamlined action. They could consider obtaining an extract conviction from the court as evidence of the conviction. Where an extract conviction is available it should be lodged with the application. A prison sentence does not need to have been imposed.

Landlords should consider a number of factors when deciding whether a streamlined action is both approriate and proprtionate. Examples of this include – the nature and seriousness of the offence; who has been convicted of the offence and their connection to the property; and where the offence was committed and the connection to the tenancy.

Policy and practice

Decisions on using the streamlined eviction process should be consistent, balanced and transparent; social landlords should identify factors they will consider and ensure these are referred to in Tenancy Management and Antisocial Behaviour policies and procedures.

Social landlords must communicate clearly with their tenants. When legal action is to be taken, the tenant must be notified of the action to be taken, what’s involved, including timescales, why action has been taken, including reference to the legislation and the tenancy agreement; who they can contact for advice and assistance, for example, Shelter Scotland and about getting independent legal advice.

A tenant who disagrees the landlord’s decision to raise court proceedings could seek judicial review of the decision, and/or defend the repossession action.

Notice

Once landlords have decided to take action under the new eviction process, they must serve notice on the tenant(s) that explains that they may raise proceedings for possession of the property and sets out the grounds for doing so (further guidance

 

Johanna Boyd

Barrister (qualified in England & Wales) and Trainee Solicitor at Brodies LLP
Johanna practised as a barrister in a London set of chambers (2-3 Gray's Inn Square) for 10 years, specialising in public law litigation for a wide variety of clients including public bodies and private clients. Following Johanna's return to Scotland, she became the first woman to lead Stirling Council, enhancing her understanding of public services and all spheres of government.
Johanna Boyd